2. He must restore to the other party everything? of value which he has received from him under the contract; or must offer1o to restore the same, upon condition that such party shall do likewise, unless the latter is unable," or positively refuses, to do so.

'Ladd v. Moore, 3 Sandf., 589.

Fisher v. Fredenhall, 21 Barb., 82; Wheaton v. Baker, 14 id., 597; M'Carty v. Ely, 4 E. D. Smith, 375; Rosenbaum v. Gunter, 3 id., 203; Masson v. Bovet, 1 Denio, 73; Milner v. Tucker, 1 Carr. & P., 15;. see Sweetman v. Prince, 26 N. Y., 224. This is undoubtedly the common law rule. But the rule in equity does not appear to have been so strict. The equitable action for rescission is governed by rules stated in the Fourth Division of this Code.

'So long as he is ignorant of any fact material to his right to rescind, the lapse of time is immaterial (Wall v. Cockerell, 10 H. of L. Cas., 229; and see cases above).

.

So long as the influence lasts, the lapse of time is not

• Ib.

regarded (Sharp v. Leach, 8 Jur. [N. S.] 1026; 31 Beav., 491; Wood v. Downes, 18 Ves., 123; Crowe v. Ballard, 3 Bro. C. C., 120; 1 Ves., 214; 2 Cox, 253; Gowland v. De Faria, 17 Ves., 20; Morse v. Royal, 12 id., 374; Roche v. O'Brien, 1 Ball & B., 338, 353; Dunbar v. Tredennick, 2 id., 316).

Goelth v. White, 35 Barb., 76; Stevens v. Hyde, 32

Barb., 171; Fisher v. Fredenhall, 21 Barb., 82;
Wheaton v. Baker, 14 id., 600; Matteawan Co. v.
Bentley, 13 id., 641; Clarke v. Dickson, El. Bl. & E.,
148; Beed v. Blandford, 2 You. & J., 278; Hunt v.
Silk, 5 East, 449.

Fisher v. Conant, 3 E. D. Smith, 199; see Nichols v.
Michael, 23 N. Y., 272.

The note of the adverse party, if not negotiated, is
valueless, and need not be restored to him (Nichols
v. Michael, 23 N. Y., 267, 273; Fraschieris v. Hen-
riques, 36 Barb., 276; Nellis v. Bradley, 1 Sandf.,
560); and so is the note of an insolvent third per-
son (Hawkins v. Appleby, 2 Sandf., 421).

Colville v. Besly, 2 Denio, 139.

10 Thornton v. Wynn, 12 Wheat., 193; Sandford v. Travers, 7 Bosw., 498; Baker v. Robbins, 2 Denio, 136; Hogan v. Weyer, 5 Hill, 389.

"Masson v. Bovet, 1 Denio, 69; Ladd v. Moore, 3 Sandf

589.

Alteration by consent.

Bealed contracts, how modified.

Extinction by cancella

tion, &c.

CHAPTER III.

ALTERATION AND CANCELLATION.

SECTION 842. Alteration by consent.

843. Sealed contracts, how modified.

844. Extinction by cancellation, &c.

845. Extinction by unauthorized alteration.

846. Alteration of duplicate, not to prejudice.

S842. A contract not under seal may be altered in any respect by consent of the parties, upon a sufficient consideration; and is extinguished thereby to the extent of the alteration.

Alterations generally, but not always, consist in the substitution of a new contract for the one that is superseded. Such an alteration is a novation, and is considered under that head.

A consideration is necessary to make an alteration valid at common law. A novation implies a consideration, but an alteration of any other kind amounts only to a partial release without seal. See the chapter on RELEASE. Even a mere extension of the time for performance requires a consideration to support it (Kellogg v. Olmsted, 25 N. Y., 189; aff'g S. C., 28 Barb.,.96).

S843. A contract under seal may be altered by an agreement under seal,1 or by an executed agreement without seal; and not otherwise, except as to the time of performance, which may be extended by any form of agreement.3

Allen v. Jaquish, 21 Wend., 628; Delacroix v. Bulkley, 13 id., 71. The propriety of this restriction is questionable, inasmuch as it is a pure technicality, which is and must be unfamiliar to ordinary business men. An alteration in writing would answer every purpose of justice.

Pierrepont v. Barnard, 6 N. Y., 279.

Flynn v. McKeon, 6 Duer, 203; Clark v. Dales, 20
Barb., 42; Stone v. Sprague, id., 509; Esmond v.
Van Benschoten, 12 Barb., 366; Fleming v. Gilbert,
3 Johns., 528.

S844. The destruction or cancellation of a written contract, or of the signature of the parties liable

thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act.

Gardner v. Gardner (Ct. of Errors), 22 Wend., 526.

3

by unautho

rized altera

tion.

S845. The intentional' destruction, cancellation Extinction or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contracts in his favor,' against parties who do not consent to the act.10

'An accidental alteration or destruction does not preju-
dice (See Skip v. Huey, 3 Atk., 93; Hornby v.
Matcham, 16 Sim., 325; Des Arts v. Leggett, 16 N.
Y., 582). Thus, where a creditor traced ink over
the debtor's name, which had become blotted and
obscured, and in so doing mispelled it by mistake,
this was held immaterial (Dunn v. Clements, 7 Jones
Law [N. C.], 58).

Blade v. Noland, 12 Wend., 173; see Hinsdale v. Bank
of Orange, 6 id., 378.

Chappell v. Spencer, 23 Barb., 584; Bruce v. Westcott,
3 id., 374; Waring v. Smyth, 2 Barb. Ch., 119;
Nazro v. Fuller, 24 Wend., 374; Maybee v. Sniffen,
2 E. D. Smith, 1; Fay v. Smith, 1 Allen, 477; Burch-
field v. Moore, 3 El. & Bl., 683; Warrington v. Early,
2 id., 763; Cowie v. Halsall, 4 B. & Ald., 197. An
alteration which cannot possibly be material, does
not vitiate (People v. Muzzy, 1 Denio, 239; Pequaw-
ket Bridge Co. v. Mathes, 8 N. H., 139; Nichols v.
Johnson, 10 Conn., 192; Smith v. Crooker, 5 Mass.,
540; Langdon v. Paul, 20 Verm., 217).

An alteration by a stranger does not affect the contract
(Rees v. Overbaugh, 6 Cow., 746; see Malin v. Malin,
1 Wend., 659). And where an alteration was made
in the presence of the creditors, by an agent of the
debtor, who believed that he had authority to make
it, but in fact had not, it was held that the contract
was not avoided thereby (Van Brunt v. Eoff, 35
Barb., 501).

• Consent is equivalent to an alteration by the party him.
self (see Martin v. Thomas, 24 How. [U. S.], 315,
Waring v. Smyth, 2 Barb. Ch., 119).

• The whole contract is extinguished by a material altera-
tion, however slight. See cases cited under note 3.

Alteration

of duplicate not to pre

Judice.

23 Pick., 231; Withers v. Atkinson, 1 Watts, 236 Barrett v. Thorndike, 1 Greenl., 73).

It seems to be doubtful whether the payee of a note, who has lost his rights under it by an alteration, can recover upon the original consideration (Clute v. Small, 17 Wend., 237). It has been held that he may (Atkinson v. Hawdon, 2 Ad. & El., 628; but compare Alderson v. Langdale, 3 B. & Ad., 660). It should seem that he ought not, for the note undoubtedly suspends the time of payment of the original debt until the note becomes due (Hart v. Hudson, 6 Duer, 294), and under such circumstances the note would never become due. But where a note is altered by consent, and is void for want of a new stamp, the original debt may be recovered (Sutton v. Toomer, 7 B. & Cr., 416).

Where there are two creditors having separate interests under a contract, an alteration by one of them does not prejudice the rights of the other.

An alteration does not discharge parties consenting thereto (Sanderson v. Symonds, 1 Brod. & B., 426; Coke v. Brummell, 8 Tuunt., 439), even though other parties jointly and severally liable with them are thereby discharged (Prettyman v. Goodrich, 23 IU, 330; Downes v. Richardson, B. & Ald., 674). If their obligations were purely joint, the result might be different.

$846. Where a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, is not within the provisions of the last section.

Lewis v. Payn, 8 Cow., 71; S. C., 4 Wend., 426.

PART III.

OBLIGATIONS IMPOSED BY LAW.

SECTION 847. Abstinence from injury.

848. Fraudulent deceit.

849. Deceit, what.

850. Deceit upon the public, &c.

851. Restoration of thing wrongfully acquired.

852. When demand necessary.

853. Responsibility for willful acts, negligence, &c.

854. Other obligations.

from injury.

S847. Every person is bound, without contract, Abstinence to abstain from injuring the person or property of another, or infringing upon any of his rights.

See these rights defined in the first and second Divisions
of this Code..

deceit.

$848. One who willfully deceives another, with Fraudulert intent to induce him to alter his position to his injury or risk,3 is liable for any damage which he thereby suffers.'

An intent to defraud is an essential element of actual
fraud (Thomas v. Beebe, 25 N Y., 250; Zabriskie v.
Smith, 13 id., 322; Addington v. Allen, 11 Wend.,
374; Behn v. Kemble, 7 C. B. [N. S.], 260; Young
v. Covell, 8 Johns., 23; Cropsey v. Robinson, 5 N. Y.
Leg. Obs., 20; People v. Kelly, 35 Barb., 444).
It is immaterial whether the party committing the
fraud receives the benefit of it, or does it for the
profit of another (Addington v. Allen, 11 Wend.,
374; Zabriskie v. Smith, 13 N. Y., 322); or whether
any person gains an advantage thereby, or not.
Injury, not gain, is the essential element of fraud
(White v. Merritt, 7 N. Y., 352).

Polhill v. Walter, 3 Barn. & Ad., 114; Corbett v. Brown,
8 Bing., 33. In these cases the fraud was commit-
ted in the belief that no actual injury would ensue.
The law takes no cognizance of a fraud which does not in

fact work some injury (People v. Cook, 8 N. Y., 67;
Eastwood v. Bain, 3 H. & N., 738; see Hemingway v.
Hamilton, 4 M. & W., 115; Story Eq. Jur., § 203).